David Gregory skates past prosecution

Few will be surprised by the news that David Gregory will not be prosecuted for possessing a high-capacity magazine during his appearance on “Meet the Press.” The decision was made by District of Columbia Attorney General Irvin Nathan, who turns out to be a social acquaintance of Gregory and his wife.

The decision not to prosecute Gregory is explained in a statement you can read here. The statement makes it clear that the decision not to prosecute is an act of prosecutorial discretion. In other words, the AG had no doubt that Gregory violated the law; he simply decided he wasn’t going to prosecute him.

The passage in which the AG explains this exercise of discretion is the following:

Influencing our judgment in this case, among other things, is our recognition that the intent of the temporary possession and short display of the magazine was to promote the First Amendment purpose of informing an ongoing public debate about firearms policy in the United States, especially while this subject was foremost in the minds of the public following the previously mentioned events in Connecticut and the President’s speech to the nation about them.

One can distinguish between violations of the D.C. firearms law that occur as a result of providing information to the public and those that do not. Whether the distinction justifies non-prosecution in the former case is very much another question, but one that falls within the AG’s discretion to decide.

Unfortunately, it’s difficult not to suspect that the AG was moved by the fact that he liked the message behind Gregory’s violation of the law. I can’t help but think that the outcome might well have been different if the “First Amendment informational purpose” had been in service of a pro-gun message.

To be sure, I’m speculating here. But it’s not speculation to say that NBC was advised by the D.C. police that Gregory would violate the law if he proceeded (as he did) to display the magazine. The AG states:

Although there appears to have been some misinformation provided initially, NBC was clearly and timely advised by an MPD employee that its plans to exhibit on the broadcast a high capacity-magazine would violate D.C. law, and there was no contrary advice from any federal official. While you argue that some NBC employees subjectively felt uncertain as to whether its planned actions were lawful or not, we do not believe such uncertainty was justified and we note that NBC has now acknowledged that its interpretation of the information it received was incorrect.

Prosecutorial discretion should not be exercised in the case of flagrant disregard of the law — e.g., a violation that occurs in the face of instruction by the police that the action being contemplated is unlawful.

The AG tries refers to the possibility that “some NBC employees subjectively felt uncertain as to whether its planned actions were unlawful.” But he is plainly not convinced that this was the case — that’s why he prefaces the point by saying “you could argue” it and that’s why he affirms the clarity and timeliness of the police advice. The AG is willing to let NBC walk, but not without letting that outfit know that he’s not buying its B.S.

But the bottom line is that NBC has walked. The AG has given a complete pass to a party that scoffed at D.C. law. He has done so quite possibly because he agrees with the scofflaw’s political message, and perhaps under some influence from his personal acquaintance with the scofflaw.